HEO (Migration)

[2020] AATA 1111

HEO (Migration) [2020] AATA 1111 (20 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Injeong HEO

CASE NUMBER:  1906020

HOME AFFAIRS REFERENCE(S):          BCC2018/4384608

MEMBER:Jennifer Cripps Watts

DATE:20 January 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 20 January 2020 at 6:11pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment for the sponsor over 90 days – sponsor voluntarily wound up by ASIC – employment and business operations continued – new employer lodged nominations for the applicant – applicant believed sponsoring company was still operating – decision under review set aside   

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8 Condition 8107; r 2.57

CASES

Ibrahim v MHA [2019] FCAFC 89

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 February 2019 made by a delegate of the Minister for Home Affairs (the delegate) to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that breached condition 8107(3)(b) of her Subclass 457. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 14 March 2019, the applicant applied for review and provided the Tribunal with a copy of the delegate’s decision.  The applicant appeared before the Tribunal on 19 July 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.  The applicant was represented in relation to the review by her registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

6. After the Tribunal hearing, additional documentary evidence that had been requested was provided.  The Tribunal wrote to the applicant on 13 September 2019, to put adverse information to her, observing its statutory obligations.  The applicant was given until 27 September 2019 to comment or respond to information that appeared to indicate that the nominator’s company went into liquidation on 3 September 2017.  Reasons were given as to relevance and consequences of the Tribunal relying on the information.  A response was received, essentially referring the Tribunal to documents that had already been provided, and the claim by the applicant that she was unaware of the company restructuring.  The information has been considered.

7. On 1 October 2015, the applicant was granted a Subclass 457 visa to work in the nominated occupation of Café or Restaurant Manager, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 141111 on the basis of a nomination for Sushi Revolution Pty Ltd (ABN 21 152 477 953) (Sushi Revolution), approved on 22 September 2015.

8. Relating to the Subclass 457 visa that is the subject of this review, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 2 January 2019, because the sponsor’s business ceased to operate on 3 September 2017 and the applicant was informed that it appeared that she ceased working for the sponsor no later than that, for a period of more than 90 days, in breach of condition 8107(3)(b).  The applicant responded on 8 January 2019 claiming to have worked for the same restaurant since 2015, the restaurant called Sushi Revolution in Hamilton.  The applicant said that when she received the NOICC she stopped working at the Sushi Revolution restaurant on around 4 January 2019, but recommenced working there when the no work restriction was lifted from her Bridging Visa E in May 2019.

9. In a statutory declaration, sworn by the applicant on 20 August 2019, she says that she has always worked for the Sushi Revolution restaurant in Hamilton ‘since the visa was granted’.  The applicant goes on to say that another worker ‘reported (her) boss to Fairwork’ and for financial reasons her boss appointed a new managing director when she stepped down.  The applicant says that she has always thought that she was employed and sponsored by Sushi Revolution and requests that the Tribunal make a favourable decision so she can be allowed to ‘finish my visa and go back to my country with honour’.  The Subclass 457 visa that is the subject of this review was granted on 1 October 2015 and would have naturally ceased on 1 October 2019.

10. The issue in this case is whether the applicant ceased working for the sponsor, or an associated entity, on or prior to 4 September 2017, for more than 90 days.  If the ground for cancellation is made out, the Tribunal must consider whether the visa should be cancelled, having regard to all relevant circumstances, which may include matters of government policy 

11. An ASIC Current and Historical Company Extract for Sushi Revolution Pty Ltd indicates that the sponsor was registered as an Australian Proprietary Company limited by shares on 4 August 2011 and was voluntarily wound up on 4 September 2017.

12. The applicant submitted a statutory declaration sworn by her on 20 August 2019, in which she says that she has always worked as a restaurant manager at the Sushi Revolution restaurant in Hamilton since the grant of her 457 visa.  She says that management changed, but that she always thought she had been working for Sushi Revolution as, she said, the owner of the restaurant is the boss who originally sponsored her.  On 13 September 2018, the standard business sponsorship of Sushi Revolution Pty Ltd was cancelled under s.140M(1) of the Act.

13. On 2 January 2019, a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa was sent to her by the Department because it appeared the applicant had ceased working for the sponsor no later than 4 September 2017 for more than 90 consecutive days and that she had therefore been non-compliant with condition 8107(3)(b) which attached to her Subclass 457 visa.  The timeframe the applicant was advised she had to respond was five working days, by 9 January 2019.

14. On 8 January 2019, the applicant’s migration agent, Ms Park, informed the Department that the applicant had been working for the same restaurant since 2015. On the same date, Hamilton Sushi Won Pty Ltd (Hamilton Sushi Won) lodged a nomination application and the applicant applied for a Subclass 482 visa, relating to the nomination application. Shortly thereafter, the nomination was refused. Hamilton Sushi Won lodged a second nomination application. On 25 February 2019, the applicant’s Subclass 457 visa was cancelled under s.116 of the Act.

15. On 14 March 2019 Hamilton Sushi Won’s nomination was approved for a related Subclass 482 visa identifying the applicant, Injeong Heo, in the occupation of Café or Restaurant Manager (ANZSCO 141111), for up to two years.  On 14 March 2019, the applicant lodged her review application relating to the cancellation of her Subclass 457 visa.  On 19 March 2019, the applicant withdrew her Subclass 482 visa application. 

16. The Tribunal has had regard to relevant information provided by the applicant, her oral evidence and relevant information in documents on the Tribunal and Department files.

    Does the ground for cancellation exist?

17. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3) attached to the applicant’s visa. This condition requires, relevant to this applicant, that she must work only for the sponsor and, if the visa holder ceases employment, the period during which the employment is ceased must not exceed 90 consecutive days.

18. It is accepted, as submitted by the applicant, that since the sponsor’s nomination was approved and the applicant’s related Subclass 457 visa was granted in 2015, the applicant has worked in the nominated occupation at the Sushi on Hamilton restaurant, bar a few months at the beginning of 2019 when the visa was cancelled and before work rights were restored to her Bridging Visa E, in May 2019. 

19. The applicant submitted that Hamilton Sushi Won is an associated entity of Sushi Revolution Pty Ltd.  ‘Associated entity’ is defined in Part 2A, r.2.57(1) of the Regulations as having the same meaning as in s.50AAA of the Corporations Act 2001. It is not accepted, on the evidence that has been provided, including the applicant’s statutory declaration and ASIC Current and Historical Extracts, that Sushi on Hamilton is an associated entity of Sushi Revolution Pty Ltd. 

20. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

21. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    Consideration of discretion

22. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.  Information provided by the applicant that the Tribunal has relied on in making its decision has been weighed in the applicant’s favour where appropriate.  Matters that are unfavourable to the applicant have not been weighed because the ground for cancellation has already been made out.

    Purpose of the applicant’s travel and stay in Australia and need to remain in Australia

23. The purpose of the applicant’s stay in Australia was to work in the nominated occupation, while holding a Subclass 457 visa, for an approved standard business sponsor with an approved nomination.  On 1 October 2015 the applicant was granted a Subclass 457 visa to work in the skilled occupation of Café or Restaurant Manager (ANZSCO 141111) for the approved sponsor, Sushi Revolution Pty Ltd.  The Tribunal is satisfied that the applicant commenced employment with the sponsor within the prescribed timeframe. 

24. No later than 4 September 2017 the applicant ceased working for the approved sponsor for a period exceeding 90 days.  No new nomination application relating to the applicant’s Subclass 457 visa was lodged.

    Extent of compliance with visa conditions

25. Other than ceasing to work for the sponsor, there is no information before the Tribunal that suggests the applicant has been non-compliant with her visa conditions. 

    Degree of financial, psychological, emotional or other hardship that may be caused

26. The applicant is a citizen of South Korea who has resided in Australia on temporary working holiday, student, work and associated bridging visas since 2010.  The Tribunal considers it reasonable to think that temporary visa holders are aware that their time in Australia is temporary and that at some point they will be expected to depart Australia.  The applicant gave oral evidence that she resides in Australia with her 35 year old brother, who holds a student visa granted for four years in 2018.  However, the 457 visa is not a permanent visa and although she would prefer to remain living and working in Australia, the Tribunal does not consider cancellation would cause the applicant other than temporary inconvenience and the possibility that she may experience some degree of hardship. 

    Circumstances in which the cancellation arose

27. The sponsor (most recently approved) was voluntarily wound up by ASIC on 4 September 2017, which is when the applicant ceased working for them, for more than 90 consecutive days.  This resulted in the applicant being non-compliant with condition 8107 of the Subclass 457 visa. 

28. Although the Tribunal considers it reasonable to think that the applicant was aware of her work arrangements and requirement that she comply with her visa conditions, including the condition that she only work for the approved sponsor, it appears possible, from the evidence, that the sponsor’s director did not inform the applicant that the business had been wound up.  It appears that the applicant may genuinely have believed, because the name of the restaurant – Sushi Revolution – had and has not changed, that the company was still operating, at least in part on the basis that she was told by the owner it had only experienced a change of management. 

29. On 2 January 2019, the applicant confirmed in her oral evidence at the Tribunal hearing that she became aware, on receipt of the NOICC, that Sushi Revolution Pty Ltd (the company, as opposed to the restaurant itself) had been wound up in September 2017 and says she immediately stopped working at Sushi Revolution so as not to continue to be non-compliant with her visa conditions.  The applicant says she did not re-commence work at Sushi Revolution until after she was interviewed by the Department in May 2019 and they restored work rights to her Bridging Visa E, on the grounds of financial hardship.

30. The Tribunal is willing to give the applicant the benefit of the doubt with regard to these matters and accept, on the face of it, that she was unaware that the sponsorship had ceased in September 2017.  In addition, as it is accepted that the applicant was not aware that she had ceased working for the approved sponsor from 4 September 2017, it cannot be expected that she was actively looking for a new sponsor to nominate her in the same position, within 90 days.   

    Past and present behaviour towards the Department

31. There is no information or evidence before the Tribunal to suggest that the applicant has been unco-operative with the Department.

    Whether there would be consequential cancellations under s.140

32. Departmental records do not indicate there to be any other visa holders who hold a Subclass 457 visa related to the applicant’s 457 visa.  The Tribunal is satisfied that there will be no consequential cancellations under s.140G of the Act.

    Mandatory legal consequences

33. Cancellation of the Subclass 457 visa will have the result that the applicant will become an unlawful non-citizen and will need to take steps to regularise her visa status.  The applicant would have limited options to apply for further visa in Australia and may be required to depart Australia.

34. As noted in the delegate’s decision, Hamilton Sushi Won lodged a new nomination application for a GK 482 Short Term nomination, nominating the applicant to work in the position of restaurant manager; that application was refused on 14 February 2019.  Departmental records now show that a second nomination application was lodged by Hamilton Sushi Won, whose standard business sponsorship was granted on 13 February 2019 for five years, as was the nomination.  In Departmental records generated by the Tribunal on 20 January 2020, there has been no change to the status of that standard business sponsorship or the nomination.

35. The applicant lodged a Subclass 482 visa application, relating to the nomination application made by Hamilton Sushi Won, on 13 February 2019.  The applicant’s 457 visa was cancelled on 25 February 2019 and the Subclass 482 application was withdrawn, on 19 March 2019.

    International obligations, including non-refoulement and best interests of children

36. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

37. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

38. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations or prevent the applicant from applying for a Subclass 866 Protection Visa.

39. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

40. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Jennifer Cripps Watts
    Member